Citation Nr: 1320977	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  06-23 446	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a lumbar spine disorder with osteoporosis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

The Veteran served on active duty from June 1961 to July 1988.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In August 2009, May 2011, and June 2012 the Board remanded the appeal for additional development.  

In January 2013, the Veteran filed with the Board an additional statement in support of his claim along with a waiver of agency of original jurisdiction (AOJ) review.  Therefore, the Board finds that final adjudication of the appeal may go forward without a remand for AOJ review.  See 38 C.F.R. § 20.1304(c) (2012). 


FINDINGS OF FACT

1.  The Veteran's spondylolysis is a congenital or developmental defect that was not subjected to a superimposed disease or injury while on active duty resulting in additional disability.

2.  The Veteran's other lumbar spine disorders, diagnosed degenerative disc disease, and grade II spondylolisthesis, are not related to any injury or disease incurred in service.

3.  The Veteran's osteoporosis is not related to any injury or disease incurred in service.



CONCLUSION OF LAW

A lumbar spine disorder with osteoporosis was not incurred in or aggravated by military service, nor may it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1154, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.9 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

Next, the Board finds that letters dated in April 2005, June 2006, and December 2009 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra.  While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the December 2012 Supplemental Statement of the Case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the Statement of the Case, the Supplemental Statements of the Case, and the Board's remands.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including his service treatment records and his post-service private treatment records, in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

In this regard, while the August 2009 Remand directed the Appeals Management Center (AMC) to obtain any outstanding post-1988 treatment records from an internist and an orthopedist that the Veteran had identified, the records are not found in the claims file.  Nonetheless, the Board finds that its adjudication of the appeal may go forward without another request for these records because in December 2009 the Veteran notified VA that no such records exist.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").  

The record also shows that the Veteran was provided with VA examinations in May 2005, February 2010, June 2011, and August 2012.  The Board finds the August 2012 examination adequate to adjudicate the claim and substantially complies with the Board's August 2009, May 2011, and June 2012 remand instructions because, after a review of the record on appeal and after taking a detailed medical history from the claimant as well as after an examination, the examiner provided an opinion as to the etiology of the Veteran's current lumbar spine disorders based on citation to relevant evidence found in the claims file and a discussion of the positive private medical opinion found in the claims file as well as the Veteran's status as a combat veteran, his claims regarding having back pain since that time, and the fact that service treatment records document his ejecting from an airplane in July 1967.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment.

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

II.  Analysis

The Veteran contends that he has a lumbar spine disorder as a result of his time on active duty.  Specifically, the Veteran claims that he injured his back when ejecting from an airplane that had been shot down while on a combat mission in Vietnam in July 1967.  The Veteran also claims that he re-injured his back in December 1982 while practicing in an A-10 cockpit simulator.  These injuries, the Veteran claims, has led to his current problems with his back.  The Veteran also claims that the cumulative impact of his over 3000 hours of flight time in attack aircraft also caused his current a lumbar spine disorder.  

The Veteran has also stated on multiple occasions that he began to experience pain in his back following the 1967 incident but did not report the pain or seek treatment for it due to his fear of being "grounded" or not being allowed to fly further missions.  He has also stated that he did not report his back pain at the time of his separation from service because he hoped to pursue a post-service career as a commercial pilot and did not wish to jeopardize that opportunity with a report of back problems.  The Veteran has submitted two "buddy statements" from fellow soldiers who knew him in service; both of these soldiers testified in written statements that they were aware of the 1967 ejection incident and knew the Veteran to complain during service of pain in his back, which he attributed to the 1967 event.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including arthritis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

However, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  Id.  Pertinent case law also provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat Veteran's alleged disability and that the Veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence.  See Collette v. Brown, 82 F.3d 389, 392 (1996). 

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

A.  The Combat Presumption

As to the combat presumption established in 38 U.S.C.A. § 1154(b), the Veteran's DD-214 shows that he was a fighter pilot in the United States Air Force and that he received multiple decorations and awards indicative of combat including a Purple Heart.  Moreover, service records document the fact that, in July 1967, he was required to eject from his aircraft which was on fire after being struck by enemy fire while on a combat mission in the Republic of Vietnam.  

The Board finds that the above evidence is sufficient to warrant application of the combat presumption to the 1967 incident in which the Veteran was forced to eject from his airplane during a combat mission.  38 U.S.C.A. § 1154(b).  Consequently, for the purpose of the below analysis, the Board concedes that the Veteran incurred an injury to his low back in the 1967 ejection incident.
B.  A Current Disability

As to a current disability, a review of the post-service medical evidence shows the Veteran's complaints and treatment since at least 1998 for lumbar spine pain thereafter diagnosed as lumbar degenerative disc disease (see June 2001 private treatment note and X-ray report), osteoporosis (see April 2003 private treatment record), and grade 2 spondylolisthesis secondary to spondylolysis at the L5-S1 level of the Veteran's lumbosacral spine (see May 2004 private orthopedist's treatment note). 

 Spondylolysis

Initially, the Board notes that for purposes of entitlement to VA benefits the law provides that a congenital or developmental defect is not a disease or injury within the meaning of applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9.  In the absence of superimposed disease or injury, service connection may not be allowed for a congenital or development defect as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. §§ 3.303(c), 4.9; see also VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990).  

The Veteran's imaging studies show that he had a bilateral pars interarticularis defect, also known as spondylolysis.  This condition has been noted by medical examiners to be a congenital or developmental defect.  (See reports of June 2011 VA examination and August 2012 VA medical opinion.)

Therefore, to the extent that the Veteran is claiming service connection for spondylolysis as directly due to or caused by an injury or disease in service, the Board finds that service connection may not be granted on this basis because spondylolysis is a congenital or developmental defect and not a disease or injury within the meaning of applicable legislation.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(c), 4.9.

As to service connection for spondylolysis due to a superimposed disease or injury causing additional disability (i.e., based upon aggravation) under VAOPGCPREC 82-90, the Board finds that the Veteran's report of having problem with symptoms of low back pain and lost range of motion since having to eject from an aircraft in 1967 is consistent with the circumstances, condition, or hardships of the Veteran's service.  38 U.S.C.A. § 1154(b).  The Board also finds that the Veteran is both competent and credible to report symptoms of low back pain and limitation of motion since the 1982 training accident and flying 3000 hours even when not documented in his medical records, because these symptoms are capable of lay observation and come to him through his own senses.  See Davidson, supra.  Likewise, Board finds that the Veteran's buddies are both competent and credible to report on what they personally observed, such as the Veteran appearing to have problems with his back while on active duty.  Id.

However, none of the Veteran's service treatment records surrounding the 1967 ejection incident document that he had an injury to his lumbar spine.  There are no complaints of low back pain noted in the relevant treatment records.  Furthermore, the X-rays of the lumbar spine were normal.  In addition, the subsequent service treatment records, including the December 1969 to January 1988 annual flying examinations, are negative for reports of symptoms of low back pain or a diagnosis of spondylolysis, much less any indication of a worsening of that condition, despite their continued reference to the 1967 ejection and the injuries he sustained at that time.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  In fact, the annual flying examinations uniformly reported that his spine was normal.  Likewise, the Veteran's July 1988 separation examination was negative for complaints regarding symptoms relating to his low back, and, on examination, the spine was noted to be normal.  Furthermore, the service treatment records, including these examinations, are silent for a history of a lumbar spine injury during a 1982 training exercise are any complaints of symptoms relating to a lumbar spine disorder resulting from 3,000 hours of flight time.  Finally, the post-service treatment records are negative for any indication that the Veteran's spondylolysis underwent a superimposed disease or injury while on active duty that resulted in an additional disability or permanent aggravation of his spondylolysis.  Id. 

In addition, both the June 2011 and August 2012 VA examiners opined that the Veteran's spondylolysis was less likely than note related to his military service and specifically the 1967 ejection incident.  Although the June 2011 VA examiner's reasoning was somewhat unclear as to the reasons for her opinion, she did indicate that the fact that the Veteran did not report immediate back pain goes strongly against an acutely fractured pars defect, which would fit with less likely than not due to the 1967 incident.  The August 2012 VA examiner, however, clearly stated that the neither the discharge summary from the 1967 hospitalization nor the X-rays taken at that time showed evidence of acute trauma.  She relied on these facts, in addition to the fact that earlier compensation claims and VA physical were silent for back complaints or conditions and the first note of back pain was in 2001.  Consequently, the Board finds that the medical opinions of record are against finding that there was a superimposed injury over or aggravation of the Veteran's spondylolysis in service.

The Veteran, as a lay person, is competent to report that he injured his low back in service and to report having symptoms of low back pain and lost range of motion since service.  Furthermore, as a combat veteran, his lay statements are accepted as evidence of an injury to his low back in the 1967 ejection incident.  Moreover, his buddies are competent to report on what they personally observed.  The Board finds, however, that none of them are competent to provide a medical opinion that the Veteran's spondylolysis was the cause of his complaints of low back pain in service or that the July 1967 ejection incident caused a superimposed injury and worsened his spondylolysis because such an opinion requires medical expertise that they do not have.  See Davidson, supra.  

Therefore, the Board finds more probative and persuasive evidence of record as to whether the Veteran's spondylolysis underwent a worsening in service, to include as a result of a superimposed injury, are the service treatment records, which are negative for a history of or a diagnosis of a superimposed injury to the spondylolysis, and the VA examiners' medical opinions rather than the Veteran's and his buddies' statements that the Veteran had problems with low back problems in service since the July 1967 ejection incident and any subsequent claimed injury or event.  

Accordingly, the Board finds that the preponderance of the evidence of record is against finding that the Veteran's spondylolysis underwent worsening in service or sustained a superimposed disability while on active duty despite any injury he may have sustained to his lumbar spine in service.  See Colvin, supra.  Therefore, the Board finds that service connection for spondylolysis is not warranted based on a superimposed disease or injury causing additional disability under VAOPGCPREC 82-90.  38 U.S.C.A. §§ 1110, 1131.

Lumbar Spine Disorders Other than Spondylolysis

As to service connection for lumbar spine disorders other than spondylolysis (diagnosed as degenerative disc disease at L5-S1, grade II spondylolisthesis, and osteoporosis), the Board finds that the Veteran's reports of having problem with symptoms of low back pain and lost range of motion since having to eject from an aircraft in 1967 is consistent with the circumstances, condition, or hardships of the Veteran's service.  38 U.S.C.A. § 1154(b).  The Board also finds that the Veteran is both competent and credible to report on observable symptoms of low back pain and limitation of motion since the 1982 training exercise and after flying 3,000 hours, although not documented in his medical records, because these symptoms are subject to lay observation and come to him through his own senses.  See Davidson, supra.  Likewise, Board finds that the Veteran's buddies are both competent and credible to report on what they observed such as the Veteran appearing to have problems with his back while on active duty.  Id.

However, none of the Veteran's service treatment records surrounding the 1967 ejection, which included lumbar spine X-rays that were normal, document complaints of or treatment for a lumbar spine injury.  Moreover, subsequent service treatment records, including the December 1969 to January 1988 annual flying examinations, are negative for reports of symptoms consistent with or a diagnosis of any lumbar spine disorder despite their continued reference to the 1967 ejection and the injuries he sustained at that time.  See Colvin, supra.  In fact, the annual flying examinations uniformly reported that his spine was normal.  Likewise, not only was the Veteran's July 1988 separation examination negative for complaints regarding a lumbar spine disorder but, on examination, the spine was noted to be normal.  The service treatment records, including these examinations, were also negative for a treatment for or a history of a lumbar spine injury incurred during a 1982 training exercise or for complaints of low back pain after having 3,000 hours of flight.  

Post-service treatment records do not document complaints or treatment for any lumbar spine disorder until a decade after the Veteran's separation from military service.  Specifically, the Board notes that, in August 1988, one month after his separation from military service, the Veteran filed a claim of service connection for a number of disabilities, including an orthopedic disability; however, the Veteran did not include in his initial claim a claim of service connection for any lumbar spine disorder.  Moreover, in connection with that claim, the Veteran was provided with a VA examination in November 1988.  When examined in November 1988, the Veteran did not report any problems with his low back nor did the examiner diagnose any lumbar spine disorder despite diagnosing other orthopedic disabilities.  Similarly, while the record shows that the Veteran received regular treatment starting from 1989 from a number of private healthcare providers for a number of problems, these records neither noted a history of lumbar spine problems nor documented any until 1998.  

A VA medical opinion as to the etiology of the Veteran's current lumbar spine disorders was obtained in August 2012.  In her report, the examiner reported that she had reviewed the Veteran's claims file (providing a detailed accounting of the evidence therein), acknowledged the Board's direction to presume that the Veteran injured his back in the 1967 ejection incident, acknowledged the Veteran's claims regarding having back pain since that time, acknowledged the two buddy statements, and noted the positive private medical opinion found in the claims file.  The examiner thereafter opined that it was less likely than not that the Veteran's current lumbar spine disorders were caused by or a result of the presumed low back injury that occurred during the 1967 ejection incident.  The examiner's rationale was the fact that service treatment records, including the July 1967 hospitalization discharge summary following the ejection and the separation examination, were silent for back symptoms; X-rays of the lumbosacral spine taken contemporaneous with the July 1967 ejection incident were negative without evidence of acute trauma causing spondylosis, spondylolisthesis, or degenerative disc disease; the first post-service VA claim in July 1988 with VA examination in 1988 were silent for back complaints or conditions; and the first medical record documenting complaints of low back pain do not appear in the record until many years after service.  As to the Veteran's osteoporosis, the examiner's rationale for his opinion was the fact that neither back injuries, spondylosis, spondylolisthesis, or degenerative disc disease of the lumbar spine are recognized causes of osteoporosis and primary osteoporosis is not uncommon in males at age 60.  (Parenthetically, the Board notes that while the record shows that the Veteran was also provided VA examinations in May 2005, February 2010, and June 2011 no discussion of these opinions is required because they do not include opinions that support his claim for service connection and, as explained in the three earlier Remands, the Board does not find the opinions adequate.  See Gonzales, supra.)  

In support of his claim, the Veteran submitted the statement of one of his private physicians dated in February 2005 in which, after taking a history from the Veteran in which he reported ejecting from his aircraft in July 1967 and re-injuring his low back in December 1982 while practicing in an A-10 cockpit simulator as well as by flying 3,000 hours, the physician stated that the Veteran had spondylolysis at the L5-S1 level which over time has evolved into spondylolisthesis and opined that his in-service injuries, including the 1967 ejection incident, "could have contributed to the initial cause of [the Veteran's] back condition."  

The Veteran also submitted his own personal statements as well as lay statements from two service buddies.  The Board notes that the Veteran, as a lay person, is competent to report that he injured his low back in service and to report having symptoms of low back pain and lost range of motion since service.  Furthermore, as a combat veteran, his lay statements are accepted as evidence of an injury to his low back in the 1967 ejection incident.  Moreover, his buddies are competent to report on what they personally observed.  The Board finds, however, that none of them are competent to provide a medical opinion that the Veteran's currently diagnosed lumbar spine disorders of degenerative joint disease, spondylolisthesis of the L5/S1 and osteoporosis are due to the 1967 ejection, the 1982 training injury, or the 3,000 hours of flight time, because such an opinion requires medical expertise which they do not have.  See Davidson, supra.  

The Board also finds that the fact that the silence in the service treatment records surrounding the 1967 ejection for complaints, diagnoses, or treatment for any lumbar spine disorder and the normal December 1969 to January 1988 annual flying examinations as well as the normal July 1988 separation examination weighs heavily against the Veteran's claim that his current lumbar spine disorders had their onset in service or are otherwise related to any injury incurred in service.  The veteran's allegation, standing alone, is not plausible in light of the absence of symptomatology in the medical evidence of record.  See McManaway v. West, 13 Vet. App. 60, 66-67 (1999).  

Furthermore, the fact that the Veteran did not raise this claim when he filed for service connection in 1988, the fact that the VA examination conducted at that time did not reveal any problem, as well as the fact that his regular treatment records did not document a problem until 1998 weighs against the claim.  Service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000).  

Moreover, for various reasons, the Board does not find the February 2005 private physician's opinion probative and persuasive evidence of a link between his current lumbar spine disorders and service.  First, the opinion appears to have been based upon the mistaken report by the Veteran that he was hospitalized and evaluated in both incidents for lower back pain, when in fact the service treatment records surrounding the 1967 ejection did not document complaints and treatment for low back pain (although his spine was evaluated as evidenced by X-ray report of the lumbar spine) and service treatment records do not document a December 1982 training accident with a subsequent hospitalization because of low back pain.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (The Board may disregard a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or in contradiction with the facts of record.).  In addition, it does not appear that the physician took into account the fact that lumbar spine X-rays taken at the time of the 1967 ejection were negative for any fracture or other abnormality.  See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  

Finally, this medical opinion is stated in too equivocal terms.  The physician's statement that "it cannot be stated that any one of these particular episodes was the direct cause of the condition" and use of the words "could have contributed" are too speculative in nature to provide the necessary degree of medical certainty to constitute probative medical nexus evidence.  See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998).  

For the foregoing reasons, the Board finds the February 2005 private physician's opinion to lack probative value and, therefore, to not be persuasive in establishing a nexus relationship between the Veteran's current low back disorders and his military service.

In contrast, the Board finds the August 2012 VA examiner's opinion both probative and persuasive because the examiner provided an opinion as to the origins of the appellant's current lumbar spine disorders based on citation to relevant evidence found in the claims file and a discussion of the positive private medical opinion found in the claims file, the Veteran's status as a combat veteran, his claims regarding having back pain since that time, the buddy statements of record, and the fact that service treatment records document his ejecting from an airplane in July 1967.  Id; see also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).

As to the assertions made by the Veteran, his buddies, and his representative that the Veteran's lumbar spine disorders were caused by his military service, the Board finds the VA examiner's medical opinion more probative and persuasive than these lay claims.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).  Moreover, the Board notes that diagnosing lumbar spine disorders requires special medical training, which these lay persons do not have, and therefore the presence and etiology of these disorders are a determination "medical in nature" and not capable of lay observation.  See Davidson, supra.  Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that the Veteran's low back disorders were caused by service is not competent evidence.  Jandreau, supra.  In these circumstances, the Board gives more credence and weight to the negative evidence of record including the silent service treatment records, the August 2012 VA examiner's medical opinion, as well as the post-service records (which are negative for ten years following his separation from military service), than any claims by the Veteran, his buddies, and his representative to the contrary.  

As to service connection under 38 C.F.R. § 3.303(b), the Board finds that none of the Veteran's current disorders involving his lumbar spine are enumerated chronic diseases listed in 38 C.F.R. § 3.309(a).  Consequently, service connection for a chronic disease based upon continuity of symptomatology is not warranted.  See Walker, supra.  For the same reasons, presumptive service connection for a chronic disease is also not warranted pursuant to 38 C.F.R. § 3.307(a).

Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran's current low back disorders diagnosed as degenerative disc disease, spondylolisthesis of L5/S1 and osteoporosis are related to any injury, disease or event incurred during his active military service.  In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the preponderance of the evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Hence, the claim for service connection must be denied.


ORDER

Service connection for a lumbar spine disorder with osteoporosis is denied. 



____________________________________________
SARAMAE KREITLOW
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs